Sopata v Gagma [2021] PGDC 117; DC6072 (19 March 2021)

DC6067

PAPUA NEW GUINEA

[In the District Court of Justice]

[Sitting in its Criminal Jurisdiction]

Com No: 166, 167, 168 & 169 of 2020

Between:

SGT. BASI SOPATA -Informant

And:

CAMILUS MONDIA GAGMA

- Defendant-

Kundiawa: P.KAUMBA - Magistrate
2021: 05 February, 05 & 19 March

2020: 27 November, 14 & 27 December
Committal: application to strike out charges-clarity& incompleteness. Cases cited: Eremas Wartoto & State SCA 2013, SC 144. State & Paul Paraka (2007).

References: District Court Act., Criminal Code Act.
Counsels:
Informant: Sergeant Wus.

Defendant: Mr Douglas Dupre.

Decision On Application To Strike Out Charges

l. The Defendant is charged with two counts of Misappropriation and Conspiracy under the Criminal Code Act, Section 383 A (l)(a) and 407(I)(b) respectively.

2. The Defendant filed his application on the 3 ^rd. of February 2021 to have the charges struck out on the basis that charges are ambiguous and / or incomplete.
   
3. The issue here with wording of the charge that is clarity and incompleteness so I have re — stated one of the charge for Misappropriation and one of conspiracy below for discussion sake.

Information

The information of Basi Sopata of Police Station Kundiawa in Papua New Guinea Sergeant of Police laid this 24^th day of November 2020 before the undersigned, Magistrate of a District Court who (upon oath) says that on / between I ^st of November 2018 to I ^st of November 2019 at Kundiawa in Papua New Guinea, Mr.Camillus Mondia Gagma aged 47 of Mai Village, Sinasina/Yongomugl District, Simbu Province.

Being a Principal of Gagma Legal Services did dishonestly applied to your own use property namely Ninety Two Thousand, Four Hundred Kina

(K92,400.00) the property of Sir Joseph Nombri Memorial General Hospital, Bank South Pacific Trust Account 1000930832, Independent State of Papua New Guinea.

Thereby Contravening section 383 A (l)(a) of the Criminal Code Act Chapter 262

Information

The information of Basi Sapota Police Station Kundiawa, Papua New Guinea Sergeant of Police, laid this 24^th day of November, 2020 before the undersigned Magistrate of a District Court who (upon oath) says that on the 1^st of November 2018 and 1^st of November 2019 at Kundiawa in Papua New

Guinea, Mr Camillus Mondia Gagma, age 47 of Mai Village

Sinasina/Yongomul District Simbu Province being a Lawyer for Gagma

Legal Services representing Dr.Harry Poka, Fr. Simon Kewandi and one John Yul Bro, as their Legal Counsel for their Criminal matters and with intent to defraud conspired with Dr,Harry Poka and others deliberately submitted Legal bill for Ninety Two Thousand Four Hundred Kina (K92,400.00) to SJNM Kundiawa General Hospital. In doing so obtained K92,400. 00 was delivered from Kundiawa Hospital Trust Account to pay for personal criminal matters.

Thereby contravening section 407 (l)(b) of the Criminal Code Act Chapter 262.

Defence Case.

4. In relation to the Misappropriation charges the defendant says and submits that the use of the word /phrase your own use is ambiguous and / not clear for him to understand and answer the charge. He further says that the wording implies that I as the Magistrate before whom the information was laid is implicated as a co-defendant or accessory to the alleged act. Hence the charge should be struck out.
5. In the relation to the conspiracy charges, the defendant says and / or submits that the elements of the charge are not properly stated in the charge and the funds allegedly obtained from Kundiawa General Hospital was used for who's personal criminal matters is not stated in the charges thus it is ambiguous and the charges should be struck out.
6. The Defence further submit that District Court has power to deal with defects and irregularity under sections 20 (2) and 32 of the District Courts Act. He also cited cases of Wartoto —vs- State (2013) SC 144 and the State — vs- Paraka (2007) N8229.
   

Prosecution case.

7. The prosecution submits that the wording of the charge of misappropriation are not ambiguous and are in order. Prosecution also directed the Courts attention to the case of Wartoto —vs- the State SCA of 2013 at Page 27 which is relevant to this application and I quote it here "arguments for Mr.Wartoto on whether all of the elements of an anticipated charge exist or not goes into his defence to the charge against him. This should be raised in response to a formal indictment presented against him by way of his defence at the National Court in its' Criminal jurisdiction and the court should be able to deal with, at the appropriate stage in the process. But it cannot be summarily determined at the instigation of an accused".
   

Findings.

8. I have read the defence's detailed and well researched submission and the Court is indebted to their assistance and in relation to the wording of the charge I agree that the Misappropriation charge is not properly worded in that the Misappropriation charge use your own use which is wrong. It should be to his own use. Your own use implies that the Magistrate before whom the charge is laid is a party to the act or accessory to it but looking at the charge from a reasonable persons point of view the charge and wordings if read together as a whole there is no great deal of ambiguity. Charges are meant for any reasonable defendant to read, understand and defend himself. The drafting officer thought the information is for the defendant and the wording is directed to the Defendant and not to the Court Magistrate in whose presence the information was laid but after all when the Court reads the charge to the defendant, the defendant will understand the charge as it stands. Hence there is no ambiguity in the charge in that the Defendant can read and understand it and call evidence to defend himself at the appropriate time.
9. In relation to the conspiracy charges I will again use the reasonable man's test I used above. A reasonable man who reads the charge will understand the charge because persons whose criminal matters the defendant took up are listed in the charge and they are Dr. Harry Poka, Fr.Simon Kewande and Mr.John Yul Bro. Defendants claim of incompleteness is cured by looking at the totality of charge. Hence in my view the defendant's right to call evidence to defend himself at the appropriate time will not be prejudiced by the current wording of the information.
10. Furthermore, the defendant is charged with an indictable offence and section 3 (2) of the Criminal Code Act provides that crimes and misdemeanours are indictable offences for which offenders unless otherwise expressly stated shall be prosecuted or convicted:
    • (a) On indictment or
    • (b) In accordance with section 420 or
    • (c) In accordance with any other Law.

I l. Part VI of the District Court Act provides for police to file charges against offenders who commit indictable offences, and misdemeanours in the Committal Court so that it can decide whether there is enough evidence to have the case committed in the National Court, or not but it cannot finally determine a indictable matter. It can only assess, evidence and if there is enough evidence commit the defendant to the trial Court, the National Court for trial. If there is not enough evidence, then it can have the charge struck out and the defendant discharged. When a Committal Court strikes out a case that is not the end of the matter legally because (1) the police can charge the Defendant again if new evidence comes to light (2) If the public prosecutor on its' own volition or upon complaint thinks that a Magistrate in the Commit Court has not done his job properly he can file an ex-officio indictment in the National Court and get the National Court to deal with the case again.

12. Where the Committal Court decides to commit a defendant charged with an indictable offence to the National Court a whole new ball game begins that is the Public Prosecutor will have to study the evidence that was before the Committal Court and file the appropriate indictment in the National Court or he may decide not to indict a defendant at all. If he files an indictment, it will be read to the defendant by the judge to plea to it and deal with him accordingly. Hence the charge or information used in the committal court becomes obsolete once the case is committed to the National Court.
13. In other words, Committal Court acts like a filter so that unnecessary cases don't get into the National Court and this filtering process may not be needed in future if circumstances changes and laws amended to allow Public Prosecutors to go direct to the National Court but for the moment we have to live with the committal process and that is the reason why Magistrates in the Committal Court don't call a defendant to plea to charges before it.
14. Furthermore, my reading of the District Courts Act, shows that there is no express provision in the District Courts Act that gives power to the Committal Court to summarily determine a case involving an indictable offence on procedure or evidence or defect and I turn to agree with Supreme Court ruling in Eremas Wartoto —vs- The State SCA of2013 as submitted by the Police Prosecution which is binding on this court.

15.Lastly Sections 20 and 32 of the District Courts Act are general provisions for the District Court to use to deal with summary offenders and offences under other Laws and in my view I cannot apply it here as suggested by the Defence.

16. In conclusion I am of the view that the charges against the defendant are not ambiguous to a greater extent so as to prejudice the defendants' right to defend himself and it should be allowed to stand. Secondly the defendants' application goes to the defence of the charge against him and his application is not necessary at this stage. He will have the opportunity to do another application if necessary when the matter is formally before the National Court via an indictment from the Public Prosecutors office that is assuming that Police come up with the Hand-Up Brief and the defendant is committed to the National Court. Lastly it will not be in the public interest and public policy to throw out indictable offences on technical and procedural errors. Hence the defendant's application be dismissed.
17. Orders accordingly.